The Religion Clauses and State Law Evidentiary Privileges

Here’s something you don’t see every day: a criminal defendant arguing that the Religion Clauses of the First Amendment require expanding the scope of a state law evidentiary privilege. The case is Varner v. Stovall (pdf, 7 pages), decided by the U.S. Court of Appeals for the Sixth Circuit.

Janniss Varner tried to kill her abusive boyfriend in 1995 by hiring a hit man. The attempt failed, but a couple of years later the boyfriend was shot to death. The cops searched his apartment and found Varner’s journals, in which she admitted trying to have him killed a couple of years earlier, disclosed the identity of the clown she hired, and expressed her ongoing desire to have her boyfriend killed. Her journal entries were often titled “Dear God” and included various and sundry prayer-like statements.

She was tried and convicted in a Michigan state court of assault with intent to commit murder in connection with the 1995 attack. (Apparently, she wasn’t charged in connection with the actual murder.) The court of appeals affirmed the conviction and the Michigan Supreme Court denied review.

With her state law remedies exhausted, Varner filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Michigan. Her primary argument was that the journals should have been excluded from evidence at trial under the clergy-penitent privilege. She didn’t argue that Michigan’s privilege statute actually applied to the journal — it clearly applies only to communications between “members of the clergy and members of their respective churches” — but instead claimed that the Religion Clauses required judicial expansion of the privilege to cover the journal entries.

Varner’s argument, as described by the Sixth Circuit, went like this:

Step one: Michigan has created an evidentiary privilege for religious communications. Step two: the privilege applies only to religions that encourage their members to communicate with God through an intermediary. Step three: this limitation discriminates among religions because it disfavors belief systems in which individuals communicate directly with God. Step four: the solution to this First Amendment problem is not to strike the privilege (which would not benefit Varner) but to extend it to all religions, including those that do not use intermediaries, and thus to extend the privilege to any journal entry that might be construed as a prayer to God.

In essence, the defendant was claiming that the privilege as codified unconstitutionally favors religions that advocate using human intercessors over those that advocate going to The Lawd directly.

As Bertrand Russell wrote of the Ontological Argument for the existence of God, “it is easier to feel convinced that it must be fallacious than to find out precisely where the fallacy lies.” So it is with Varner’s argument, at least on my admittedly high-speed, low-altitude pass.

The court disposed of the argument by saying that the privilege statute treats all religions the same in that no one’s journal entries are protected. Regardless of whether or not you belong to an intercession-based religion, your private, “my eyes only” writings are fair game in court. Well, yeah, but doesn’t that bring us right back to where we began? The counterargument seems to be eating its own tail.

In any event, the Court got an assist from a 1996 federal law called the Antiterrorism and Effective Death Penalty Act. That law significantly altered federal habeas corpus practice by prescribing that a state prisoner’s habeas petition can be granted only if the state court’s rulings during the petitioner’s trial were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Right or wrong, the state courts that rejected Varner’s privilege argument certainly didn’t act “contrary to” or “unreasonabl[y] appl[y]” any “clearly established” Supreme Court precedent.

The opinion also includes an interesting discussion of a second constitutional argument, namely that the state trial court denied Varner her due process rights by failing to allow her to present expert evidence on battered women syndrome.

To sum up, the opinion has a good beat and you can dance to it. I give it a 6.5.